An appeals court ruled today that PAFACA does not violate TikTok’s free speech rights.
“The government does not suppress content, nor does it require a certain mix of content. Indeed, the content of the platform could generally remain unchanged after the sale, and people in the United States would remain free to read and share as much PRC propaganda (or other content) as they wish on TikTok or another platform of their choice,” it said. Ginsburg in the majority opinion.
“Congress has deemed it necessary to take this risk given the serious threats to national security it perceives.” And because the record reflects that Congress’s decision was thoughtful, consistent with long-standing regulatory practice, and devoid of an institutional purpose to suppress particular messages or ideas, we are unable to overturn it,” Justice Sri.’s concurring opinion said Srinivasan.
Both the US Department of Justice and TikTok previously requested an expedited decision to be issued by today. With the law in place, the TikTok ban could go into effect a day before Trump’s inauguration next month.
In reality, the app is most likely to survive for a few more months. A 90-day deadline extension remains on the table for the Biden administration, which would leave the matter in Trump’s hands. What’s more certain to happen is that ByteDance will appeal the court’s ruling today and take it to the Supreme Court next time, which is expected to hear the case and issue its decision later next year.
Friday’s ruling will come as no surprise to people following the case. In oral arguments before the Court of Appeals in September, the justices appeared to have already accepted the idea that the application posed a legitimate concern for US national security. The remaining open question was whether the ban was an over-correction that caused more relative harm to free speech. Today, the judges said emphatically that the answer to that is no.
“Courts tend to give the executive branch wide latitude in matters of national security,” said Dewardrick McNeil, a former Defense Department official and current managing director of the D.C.-based consultancy Longview Global. While Congress could theoretically repeal the PAFACA Act, it will be a tough case for Trump to convince them to do so because there is a “large majority of people on Capitol Hill who supported this legislation,” McNeil says.
To save TikTok, Trump can use executive powers to his advantage. “While you can’t completely ignore the law, you can decide how strongly you want to focus on pursuing the law and how aggressively you want to enforce it,” McNeil says.
Alan Rosenstein, an associate professor of law at the University of Minnesota Law School, told WIRED earlier that the PAFACA Act was written so that the US president could decide whether TikTok “is no longer controlled by a foreign adversary.” This separation could create a legal path for the Trump administration to allow TikTok to continue operating in the US.
An alternative scenario that would allow Trump to avoid running afoul of his Republican allies in Congress would be to broker a sale of TikTok to an American investor. At least two major offers to buy the app have already surfaced, including one from Steven Mnuchin, the former US Treasury secretary, and Frank McCourt, an American real estate investor.
Updated 12/6/24 12:11 PM ET: This story has been updated with a comment from TikTok.
